# Shri Prakash Gupta v. State of U.P

- **Citation:** (2022) 10 ILRA 205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-17
- **Case number:** Criminal Appeal No. 1791 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-prakash-gupta-v-state-of-u-p-47705
- **Pages:** 12

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 498-A, 304-B,
302/34 - 3⁄4 Dowry Prohibition Act,1961Challenge
to-Conviction-
dying
declaration-deceased
died
due
to
206 INDIAN LAW REPORTS ALLAHABAD SERIES
septicemia
caused
by
burn
injuriesStatement of PW-1 & proves that the
ingredient of 'soon before death' has not
established at all- death caused by the
accused was not premeditated-husband
was not present at the time of incident-As
per evidence of PW-1 and PW-2, On
account of property dispute the deceased
and her husband were kicked out by the
in-laws -From the statement of PW-6,
PW-7 it is clear that there was no tutoring
in the whole process of the recording of
the dying declaration-Trial court convicted
the accused on the solitary evidence of
dying declaration- the deceased died after
three
days
of
incident
due
to
the
poisonous infection developed in her burn
injuries, hence it cannot be said that the
deceased was murdered -Hence, the case
falls within the ambit of Section 304 IPC
and not under Section 302 IPC-The
sentence of accused persons is reduced to
the period of 10 years with remission-the
period
already
undergone
can
be
sustained
in
the
full
period
of
incarceration. (Para 1 to 53)

B. The law on the issue of dying
declaration can be summarized to the
effect that in case the court comes to the
conclusion that the dying declaration is
true and reliable, has been recorded by a
person at a time when the deceased was
fit physically and mentally to make the
declaration and it has not been made
under any tutoring, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 32)

C. While determining the quantum of
sentence, the court should bear in mind
the 'principle of proportionality'. Sentence
should be based on facts of a given case.
Gravity of offence, manner of commission
of crime, age and sex of accused should be
taken into consideration. Discretion of
Court in awarding sentence cannot be
exercised arbitrarily or whimisically.(Para
43 to 47)

The appeal is partly allowed. (E-6)
List of Cases cited:

## Text

10 All. Shri Prakash Gupta Vs. State of U.P.
205
the recovery shows that there were so many
shops of tea, eggs and P.C.O. near the place
of the arrest, where presence of people
cannot be disputed at early hours in the
night but no public witness was found by
the arresting officer. It makes the recovery
doubtful. Further it is noteworthy that the
arrest of the accused person was made on
25.12.2005 after three days of the alleged
incident of murder while they were
allegedly carrying the same country-made
pistol with used cartridge in its chamber
and another cartridge in his pocket. It
seems improbable that the culprit who is a
named accused in the F.I.R. would carry the
country-made pistol with used cartridge in
its chamber after three days of committing
murder with the same weapon. Even the
police personnel accompanying him at the
time of the arrest had not been examined.
During
the
cross-examination,
PW-5
expressed his inability to explain the
orientation of the place of arrest and
recovery. The recovery of country-made
pistol and cartridge, as such, cannot be
believed being beyond the shadow of
reasonable doubt.

48. After having examined the entire
evidence and considering the circumstances
of the case at hand in totality, we are afraid to
affirm the conviction on the oral testimony of
the prosecution witnesses (PW-1 & PW-2)
and to hold that the prosecution has
established the charges against the accused
persons beyond reasonable doubt. The benefit
of reasonable doubt, therefore, has to go to
the accused persons and they are liable to be
acquitted of all the charges. The judgment
and order of the Sessions Court convicting
and sentencing the appellants is hereby set
aside.

49. The appellant Kripa Shanker
Dubey is in jail who shall be released from
the detention forthwith, if not wanted in
any other case.

50. Appellant Uma Shanker Dubey is
on bail. He need not to surrender, his bail
bonds are cancelled and sureties are
discharged.

51. These appeals are, accordingly,
allowed.

52. Copy of this judgment alongwith
the original record be transmitted to the
Court concerned for necessary compliance.
A compliance report be sent to this Court
within one month. The office is directed to
keep the compliance report on record.
----------
(2022) 10 ILRA 205
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.10.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 1791 of 2014

Shri Prakash Gupta ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pushkar Srivastava, Sri Akhilesh Kumar,
Sri Naushad Ahmad Siddiqui

Counsel for the Opposite Party:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 498-A, 304-B,
302/34 - 3⁄4 Dowry Prohibition Act,1961Challenge
to-Conviction-
dying
declaration-deceased
died
due
to
206 INDIAN LAW REPORTS ALLAHABAD SERIES
septicemia
caused
by
burn
injuriesStatement of PW-1 & proves that the
ingredient of 'soon before death' has not
established at all- death caused by the
accused was not premeditated-husband
was not present at the time of incident-As
per evidence of PW-1 and PW-2, On
account of property dispute the deceased
and her husband were kicked out by the
in-laws -From the statement of PW-6,
PW-7 it is clear that there was no tutoring
in the whole process of the recording of
the dying declaration-Trial court convicted
the accused on the solitary evidence of
dying declaration- the deceased died after
three
days
of
incident
due
to
the
poisonous infection developed in her burn
injuries, hence it cannot be said that the
deceased was murdered -Hence, the case
falls within the ambit of Section 304 IPC
and not under Section 302 IPC-The
sentence of accused persons is reduced to
the period of 10 years with remission-the
period
already
undergone
can
be
sustained
in
the
full
period
of
incarceration. (Para 1 to 53)

B. The law on the issue of dying
declaration can be summarized to the
effect that in case the court comes to the
conclusion that the dying declaration is
true and reliable, has been recorded by a
person at a time when the deceased was
fit physically and mentally to make the
declaration and it has not been made
under any tutoring, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 32)

C. While determining the quantum of
sentence, the court should bear in mind
the 'principle of proportionality'. Sentence
should be based on facts of a given case.
Gravity of offence, manner of commission
of crime, age and sex of accused should be
taken into consideration. Discretion of
Court in awarding sentence cannot be
exercised arbitrarily or whimisically.(Para
43 to 47)

The appeal is partly allowed. (E-6)
List of Cases cited:

1. Devendra Singh Vs St. of U.K. (2022) AIR SC
2965

2. Mustafa Shahdal Shaikh Vs St. of Mah.
(2013) AIR SC 851

3. Kaliyaperumal Vs St. of T. N.(2003) AIR SC
3828

4. Lakhan Vs St. of M. P.(2010) 8 SCC 514

5. Krishan Vs St. of Har. (2013) 3 SCC 280

6. Ramilaben Hasmukhbhai Khristi Vs St. of Guj.
(2002) 7 SCC 56

7. Veeran & ors. Vs St. of M.P. (2011) 5 SCR
300

8. Tukaram & ors. Vs St. of Mah. (2011) 4 SCC
250

9. B.N. Kavatakar & anr. Vs St. of Karnataka
(1994) SUPP 1 SCC 304

10. Md. Giasuddin Vs St. of A.P. (1977) AIR SC
1926

11. Lakhan Vs St. of M. P. (2010) 8 SCC 514

12. Krishan Vs St. of Har. (2013) 3 SCC 280

13. Ramilaben Hasmukhbhai Khristi Vs St. of
Guj. (2002) 7 SCC 56

14. Deo Narain Mandal Vs St. of U.P.(2004) 7
SCC 257

15. Ravada Sasikala Vs St. of A.P. (2017) AIR
SC 1166

16. Jameel Vs St. of U.P. (2010) 12 SCC 532

17. Guru Basavraj Vs St. of Karn. (2012) 8 SCC
734

18. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

19. St. of Punj. Vs Bawa Singh (2015) 3 SCC 441
10 All. Shri Prakash Gupta Vs. State of U.P.
207
20. Raj Bala Vs St. of Har. (2016) 1 SCC 463

21. Khokan @ Khakhan Vishwas Vs St. of
Chhattisgarh (2021) 2 SCC 365

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. This criminal appeal is directed
against the judgement and order dated
25.2.2014 and sentence dated 27.2.2014
passed by learned Additional Sessions Judge,
Court No.6, Deoria in Sessions Trial No. 246
of 2010 arising out of Case Crime No. 221 of
2010 under Section 302 I.P.C., P.S.-
Bhatparani, District- Deoria convicting and
sentencing the appellant under Section 302
I.P.C. to undergo life imprisonment with a
fine of Rs.20,000/- and in default of payment
of fine further one year simple imprisonment.

2. The prosecution story as emerged out
from the FIR is that Chandni, the sister of the
informant was married with Rajan Gupta on
12.12.2006 but the husband was not satisfied
with the dowry given in the marriage and
always used to quarrel over that. On
8.6.2010, the informant came to know that
the in-laws of the deceased had set ablaze his
sister. On the next day when the informant
went to the District Hospital, Deoria, he
found his sister in a bitterly burnt condition
and she told that her mother-in-law, Guddi
Devi (Chacheri), father-in-law Shriprakash
Gupta caught hold her and her mother-in-law
Guddi Devi, sister-in-law Km. Rani and
husband Rajan Gupta set her ablaze. The
deceased (then injured) referred to the
Medical College, Gorakhpur and during
treatment
she
died
on
12.6.2010.
Subsequently FIR, Ex.Ka-3 was lodged on
the written report Ex.Ka-1 on 16.6.2010 and
G.D. Ex.Ka-4 was also prepared. The inquest
of the deceased was performed and autopsy
report was also prepared by Dr. Arvind
Kumar Gupta, who found injuries as whole
on the body of the deceased.

(i) Septic burn all over body except
some part of abdomen and scalp. Superficial
to deep first layer present at some place.

3. In the injury report the doctor also
opined that the death was caused due to
septic shock as a result of anti mortem
burning. After completion of investigation
charge sheet Ex.Ka-16 was submitted by
the I.O against the Guddi Devi and
Shriprakash Gupta, mother-in-law and
father-in-law respectively of the deceased.
The I.O. Inspected the spot and prepared
site plan Ex.Ka-13, Inspection memo
Ex.Ka-14 and submitted charge sheet
Ex.Ka16 to the Court.

4. During the trial of the case accused
Smt. Guddi Devi died and the case was
abated against her.

5. The accused Shriprakash Gupta
were charged under Section 498A, 304 B
I.P.C. and Section 3/4 D.P. Act. He was also
charged under Section 302/34 I.P.C. The
accused denied of the charges and claimed
to be tried.

6. The prosecution in order to prove
its case in oral evidence has relied upon the
testimonies of P.W.1 Santosh Kumar Gupta,
the informant/ brother of the deceased,
P.W.2 Urmila Devi, mother of the deceased,
P.W.3 Cons. Kalicharan Yadav, the witness
of the inquest, P.W.4 Head Moharir Veer
Bahadur Yadav scribe of the FIR, P.W.5 S.I.
Amarjeet Singh Yadav, witness of the
inquest, P.W.6 Gulab Singh, retired Nayab
Tehsildar, witness of the dying declaration
and P.W.7 Dr. Arvind Kumar Gupta, who
performed autopsy of the deceased.
208 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The prosecution also relied upon
documentary evidence and written report
Ex.Ka-1, panchayatnama Ex.Ka-2, Chick
FIR Ex.Ka-3, Kayami Rapat Ex.Ka-4,
papers prepared for the purpose of autopsy
as Ex.Ka-5, Ex.Ka-6, Ex.Ka-7, Ex.Ka-8,
Ex.Ka-9, Ex.Ka-10, photo nash Ex.Ka-11,
dying declaration Ex.Ka-12, site plan
Ex.Ka-13, inspection memo Ex.Ka-14,
arresting memo Ex.Ka-15 and charge sheet
Ex.Ka-16.

8. It is pertinent to mention here that
the genuineness of the site plan and charge
sheet has been admitted by the defence
side, hence the I.O. was not examined
during the trial. In his statement under
Section 313 Cr.P.C., the accused stated that
he has been falsely implicated. The dying
declaration is a forged document and the
total incident is false. It has also been stated
that at the time of the incident, the husband
of the deceased Rajan Gupta had gone to
the market. When the information of
burning was given to him he brought the
injured to District Hospital, Deoria and
subsequently to the Medical College,
Gorakhpur where she was admitted and
during treatment she was died. The
cremation was also performed by her
husband Rajan Gupta. The charge sheet has
been filed without any evidence on false
grounds and it was not a case of homicidal
or dowry death. However, no defence
evidence has been adduced by the convict/
appellant.

9. The trial Court after considering
the entire evidence on record, recorded the
acquittal
of
the
convict/
appellant
Shriprakash. Gupta under Section 498A,
304B and 3/4 D.P. Act and at the same time
recorded his conviction under Section 302
I.P.C.
and
sentenced
him
for
life
imprisonment and a fine to the tune of
Rs.20,000/-

10. Being aggrieved and dissatisfied
with the aforesaid judgement and order
passed by the learned trial Court, the
appellant
has
preferred
the
present
appeal.

11. Heard Shri Naushad Ahmad
Siddiqui, learned counsel for the appellant
and Shri N.K. Srivastava, learned A.G.A.
for the State.

12. Learned counsel for the appellant
has submitted that no offence as alleged has
been committed by the accused. It is further
submitted that the accused had no motive to
do away with the deceased and that the
death of the deceased was due to medical
negligence and occurred was after a
considerable period of time from the date
of commission of occurrence.

13. It has been vehemently argued by
learned A.G.A. for the State that the
offence alleged is gruesome and is
conclusively proved by dying declaration.
Learned counsel has taken us through the
evidence on record. He further submitted
that life imprisonment awarded to the
accused in the facts and circumstances of
the case was the only punishment which
could be awarded to the accused-appellant
and requested for dismissal of appeal.

14. Before we start considering the
evidence which we are not elaborately
discussing, the reason being it is proved
conclusively that the accused has caused
injuries to the deceased and set her ablaze
which was primarily responsible for her
death. The alternative prayer about lesser
punishment is to be considered.
10 All. Shri Prakash Gupta Vs. State of U.P.
209

15. After perusal of the impugned
judgement, we find that the learned trial
Court was not convinced as to the
ingredients of Section 304B of Indian
Penal Code and fully establishing in the
present case on appreciation of the
evidence of P.W.1 and P.W.2, who
happened to be the brother and mother of
the deceased respectively. The trial Court
has opined that the ingredients of Section
304B, 498A I.P.C. and Section 3/4 Dowry
Prohibition Act were not established. The
impugned judgement leads us towards the
definition
of
Section
304B
I.P.C.
Necessary ingredients of the offence of
dowry death under Section 304B I.P.C.
reads as follows:

304B. Dowry death.--

(1) Where the death of a woman
is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative
of her husband for, or in connection with,
any demand for dowry, such death shall be
called "dowry death", and such husband or
relative shall be deemed to have caused her
death. Explanation.--For the purpose of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life.]

16. From the above definition the
following ingredients to establish the
offence under Section 304B I.P.C. are
follows:

(i) the death of a woman must
have been caused by burns or bodily injury
or
otherwise
than
under
normal
circumstances;

(ii)
such
death
must
have
occurred within seven years of her
marriage;

(iii) soon before her death, the
woman must have been subjected to cruelty
or harassment by her husband or any
relatives of her husband;

(iv) such cruelty or harassment
must be for, or in connection with, demand
for dowry".

17. The aforesaid ingredients have
been reiterated in a catena of decisions of
the Hon'ble Apex Court and of this High
Court also and very recently in Devendra
Singh Vs. State of Uttrakhand AIR 2022
SC 2965 also.

18. We have gone through the
evidence of P.W.1 and P.W.2 and find that
although the factum of demand of dowry
and harassment caused to the deceased
finds place in their deposition but they have
made only general allegations against all
the in-laws of the deceased and no specific
role of any of the in-laws including the
present accused has been stated in their
entire testimony. The trial court considering
the aforesaid deposition has also held that
no case is made out against the accused
under Section 498A I.P.C. and Section 3/4
D.P. Act. So far as the offence under
Section 304B I.P.C. is concerned the
essential ingredients of 'soon before' does
not find place any where in the respective
testimonies of P.W.1 and P.W.2.

19. The phrase 'soon before' has not
been defined any where in the Indian Penal
Code rather it has been explained in a
210 INDIAN LAW REPORTS ALLAHABAD SERIES
catena of decisions of the Hon'ble Apex
Court and of this Court.

20. In Mustafa Shahdal Shaikh Vs.
State of Maharashtra, AIR 2013 SC 851,
the Hon'ble Apex Court held that ''Soon
before her death' means interval between
cruelty and death should not be much. There
must be existence of a proximate and live
links between the effect of cruelty based on
dowry demand and the concerned death. If
the alleged incident of cruelty is remote in
time and has become state enough not to
disturb the mental equilibrium of the woman
concerned, it would be of no consequence.

21. Also in Kaliyaperumal Vs. State
of Tamil Nadu AIR 2003 SC 3828, the
Hon'ble Apex Court held that " The
expression ''soon before her death' used in the
substantive section 304B, I.P.C. and Section
113B of the Evidence Act is present with the
idea of proximity text. No definite period has
been indicated and the expression ''soon
before her death' is not defined. The
determination of the period which can come
within the term '' soon before' is left to be
determined by the courts, depending upon
facts and circumstances of each case. Suffice,
however, to indicate that the expression' soon
before would normally imply that the interval
should not be much between the concerned
cruelty or harassment and the death in
question. There must be existence of a
proximate and live-link between the effect of
cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty
is remote in time and has become stale
enough not to disturb mental equilibrium of
woman concerned, it would be of no
consequence.

22. The trial Court has come to the
conclusion
that
since
the
essential
ingredient of 'soon before' is also absent in
the testimonies of the witnesses, the death
occurred of the deceased cannot be termed
as
dowry
death
in
the
facts
and
circumstances of this case. It is to be noted
here that the formal evidence adduced by
the prosecution support the prosecution
case in many aspects. P.W.4 Head Moharrir
Veer Bahadur Yadav has fully proved the
Chick FIR and G.D. of the case as Ex.Ka-3
and Ka-4 and has stated that the FIR was
lodged on the basis of the application given
by the informant Santosh Kumar, which has
been proved by the informant P.W.1
Santosh Kumar as Ex.Ka-1. Like wise the
performance of inquest has been proved by
Constable Kalicharan P.W.3 and also by
P.W.5 S.I. Amarjeet Singh Yadav. P.W.5 has
also proved the papers prepared for the
purpose of autopsy as Ex.Ka-5, Ex.Ka-6,
Ex.Ka-7, Ex.Ka-8, Ex.Ka-9 and Ex.Ka-10.
Both the witnesses have also proved that
the inquest was performed on 13.6.2010 at
the mortuary house of the B.R.D. Medical
College, Gorakhpur.

23. P.W.7 Dr. Arvind Kumar Gupta
has performed the autopsy of the deceased
and he has proved the autopsy report as
Ex.Ka-12 and has found that the death of
the deceased was caused due to septic
shock as a result of anti mortem burning .
The post mortem has been conducted on
13.6.2010 and the deceased died on
12.6.2010.

24. The learned trial Court has relied
upon the dying declaration of the deceased
(then injured) recorded by P.W.6 retired
Nayab Tehsildar Gulab Singh.

25. P.W.6 in his deposition has stated
that by order of S.D.M. Sadar, Deoria he
had recorded the dying declaration of
Chandni Devi on 9.6.2010 in the female
ward of District Hospital, Deoria. He has
10 All. Shri Prakash Gupta Vs. State of U.P.
211
proved the dying declaration as Ex.Ka-11
and has also stated that the dying
declaration was prepared by him in his own
hand writing and signature.

26. The deceased (then injured) in her
dying declaration has stated like this

"मैं बयान करती हूँ कक मेरी उम्र 23
वर्ष है मेरे दो बच्चे हैं। मेरे सासु व ससुर जलाये
है। मेरे उपर कमट्टी का तेल किड़क कर जलाये
तथा मारे पीटे है मेरे पकत गाड़ी से लेकर
अस्पताल लेकर देवररया आये अस्पताल भती
कराये। मेरे सासु ससुर मुझे व मेरे पकत को घर से
कनकाल रहे हैं कहते हैं तुम लोगोों का हक कहस्सा
नहीों है। भसुर मेरा ठीक है। केवल मेरे सासु
ससुर ही बदमाश है वही जलाये हैं बयान सुनकर
तस्दीक ककया।"

27. P.W.6 in his testimony has stated
that the thumb impression of Chandni
Gupta
was
taken
over
the
dying
declaration. He has also clarified that at the
time of statement, the victim was bitterly
burnt but was in a condition to make
statement. He had orally taken permission
from the doctor concerned who had told
him that the victim is in a condition to
make statement. He has further stated that
the statement of the victim was verified by
the duty doctor.

28. The trial Court has examined the
veracity of the dying declaration Ex.Ka-11
in detail in the impugned judgement. From
the perusal of the whole deposition of
P.W.6, we do not find any adversity in his
statement. The learned trial Court has made
the dying declaration to be the sole basis of
the
conviction
in
the
facts
and
circumstances of the present case. We are
duty bound to examine the legal position of
the
dying
declaration.
The
dying
declaration to be the sole basis of the
conviction.

29.

Legal
position
of
dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable. In this regard, Hon'ble Apex Court
has summarized the law regarding dying
declaration in Lakhan vs. State of
Madhya Pradesh [(2010) 8 Supreme
Court Cases 514], in this case, Hon'ble
Apex Court held that the doctrine of dying
declaration is enshrined in the legal maxim
nemo
moriturus
praesumitur
mentire,
which means, "a man will not meet his
Maker with a lie in his mouth". The
doctrine of dying declaration is enshrined
in Section 32 of Evidence Act, 1872, as an
exception to the general rule contained in
Section 60 of Evidence Act, which provides
that oral evidence in all cases must be
direct, i.e., it must be the evidence of a
witness, who says he saw it. The dying
declaration is, in fact, the statement of a
person, who cannot be called as witness
and, therefore, cannot be cross-examined.
Such statements themselves are relevant
facts in certain cases.

30. The law on the issue of dying
declaration can be summarized to the effect
that in case the court comes to the
conclusion that the dying declaration is true
and reliable, has been recorded by a person
at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an eventuality no corroboration is required.
It is also held by Hon'ble Apex Court in the
aforesaid case, that a dying declaration
recorded by a competent Magistrate would
stand on a much higher footing than the
212 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration recorded by office of lower
rank, for the reason that the competent
Magistrate has no axe to grind against the
person named in the dying declaration of
the victim.

31. P.W.6 is absolutely independent
witness. In the wake of aforesaid judgment
of Lakhan (supra), dying declaration
cannot be disbelieved, if it inspires
confidence.
On
reliability
of
dying
declaration and acting on it without
corroboration, Hon'ble Apex Court held in
Krishan vs. State of Haryana [(2013) 3
Supreme Court Cases 280] that it is not an
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the attendant
circumstances show it to be reliable and it
has been recorded in accordance with law,
the deceased made the dying declaration of
her own accord and upon due certification
by the doctor with regard to the state of
mind and body, then it may not be
necessary for the court to look for
corroboration. In such cases, the dying
declaration alone can form the basis for the
conviction of the accused. Hence, in order
to pass the test reliability, a dying
declaration has to be subjected to a very
close scrutiny, keeping in view the fact that
the statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination. But once, the court has
come to the conclusion that the dying
declaration was the truthful version as to
the circumstance of the death and the
assailants of the victim, there is no question
of further corroboration.

32. In Ramilaben Hasmukhbhai
Khristi vs. State of Gujarat, [(2002) 7
SCC 56], the Hon'ble Apex Court held that
under the law, dying declaration can form
the sole basis of conviction, if it is free
from any kind of doubt and it has been
recorded in the manner as provided under
the law. It may not be necessary to look for
corroboration of the dying declaration. As
envisaged, a dying declaration is generally
to be recorded by an Executive Magistrate
with the certificate of a medical doctor
about the mental fitness of the declarant to
make the statement. It may be in the from
of question and answer and the answers be
written in the words of the person making
the declaration. But the court cannot be too
technical and in substance if it feels
convinced about the trustworthiness of the
statement which may inspire confidence
such a dying declaration can be acted upon
without any corroboration.

33. In the present case though the
certificate of the doctor was oral, and not in
written form but this fact cannot be ignored
that P.W.6 has recorded the statement on
the instructions of S.D.M. Sadar in his
official capacity and he had no grudge or
enmity with the accused.

34. There is no possibility of false
implication
of
the
accused
by
this
independent witness.

35. From the above precedents, it
clearly emerges that it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused when such dying declaration is
true, reliable and has been recorded in
accordance with established practice and
principles and if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity.

36.

In
context of
the dying
deceleration of the deceased, it is also
10 All. Shri Prakash Gupta Vs. State of U.P.
213
relevant to note that deceased died after
three days of recording it. It means that she
remained alive for three days after making
dying declaration, therefore, truthfulness of
dying declaration can further be evaluated
from the fact that she survived for three
days after making it from which it can
reasonably be inferred that she was in a fit
mental condition to make the statement at
the relevant time.

37. Thus, the dying declaration in this
case is a trust worthy, cogent, reliable and
innocent peace of evidence, which has
correctly been relied upon by the trial
Court.

38. However, the question which falls
for our consideration is whether, on
reappraisal of the peculiar facts and
circumstances of the case, the conviction of
the appellant under Section 302 of I.P.C.
should be upheld or the conviction deserves
to be converted under Section 304 Part-I or
Part-II of the Indian Penal Code. It would
be relevant to refer Section 299 of the
Indian Penal Code, which reads as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the
knowledge that he is likely by such act to
cause death, commits the offence of
culpable homicide."

39. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A
person
commits
culpable homicide if the
act by which the death is
caused is done-
Subject to certain exceptions
culpable homicide is murder is
the act by which the death is
caused is done.

INTENTION

(a) with the intention of
causing death; or

(1) with the intention of causing
death; or
(b) with the intention of
causing
such
bodily
injury as is likely to
cause death; or
(2) with the intention of causing
such bodily injury as the offender
knows
to
be
likely
to
cause the death of the person to
whom the harm is caused;
KNOWLEDGE
KNOWLEDGE
(c) with the knowledge
that the act is likely to
cause death.
(4) with the knowledge that the
act is so immediately dangerous
that it must in all probability
cause death or such bodily injury
as is likely to cause death, and
without any excuse for incurring
the risk of causing death or such
injury as is mentioned above.

40. From the upshot of the aforesaid
discussions, it appears that the death was
caused by the accused in unison and it was
a homicidal death whether the same was
not premeditated or premeditated will have
to be seen. From perusal of the dying
declaration itself, it is evident that the
crime was committed due to the property
dispute. It transpires from the evidence of
P.W.1 and P.W.2 that on account of
property dispute the deceased and her
husband were kicked out by the in-laws of
the deceased from their house. Under these
circumstance, it can be concluded that
214 INDIAN LAW REPORTS ALLAHABAD SERIES
though the injuries over the body of the
deceased were sufficient in the ordinary
course of nature to have caused death, the
accused had no intention to do away with
the deceased, hence the instant case falls
under the Exceptions 1 and 4 to Section
300 of IPC. While considering Section 299
as
reproduced
herein
above
offence
committed will fall under Section 304 PartI as per the observations of the Apex Court
in Veeran and others Vs. State of M.P.
Decided, (2011) 5 SCR 300 which have to
be also kept in mind.

41. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
Maharashtra, reported in (2011) 4 SCC
250 and in the case of B.N. Kavatakar and
Another
Vs.
State
of
Karnataka,
reported in 1994 SUPP (1) SCC 304, we
are of the considered opinion that the
offence would be one punishable under
Section 304 part-I of the IPC. The deceased
no doubt as per the the opinion of the
doctor, has died due to septic shock.

42. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The
infliction of
harsh
and
savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

43. 'Proper Sentence' was explained in
Deo Narain Mandal vs. State of UP
[(2004) 7 SCC 257] by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

44. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
10 All. Shri Prakash Gupta Vs. State of U.P.
215
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

45. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

46. During course of argument,
learned counsel for the appellant has made
an alternative prayer for reduction of the
sentence and has submitted that the
sentence of life imprisonment awarded to
the appellant by the trial Court is very
harsh. He has also submitted that the
appellant is languishing in jail for the past
more than 10 years and at present he is
aged about 70 years and the co-accused, the
mother-in-law of the deceased died during
the course of trial itself. Hence a prayer has
been made to reduce the sentence of the
convict to 10 years.

47. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

48. We are unable to agree with the
submission of learned learned A.G.A. as far
as it relates to the finding of the court
below that the death was a premeditated
murder and falls within provisions of
Section 300 of IPC and the sentence under
Section 302 IPC is just and proper. The
216 INDIAN LAW REPORTS ALLAHABAD SERIES
reason for the same is that the deceased did
not die an insistence death; had it been a
premeditated murder, the injuries on the
body would have caused her immediate
death.

49. One more glaring fact is that from
the record of the medical papers it is
evident that the deceased survived for four
days. She was admitted in Medical College,
Gorakhpur and thereafter she developed
fissure and later on during treatment, she
breathed her last due to septicemia. Though
we concur with learned Trial Judge that the
death was homicidal death we are unable to
accept the submission of Sri Vikas
Goswami, learned A.G.A.

50. The judgment of the Apex Court
in State of Uttar Pradesh Vs. Subhash @
Pappu ( supra) and Khokan @ Khokhan
Vishwas Vs. State of Chhattisgarh ( supra)
will ensure for the benefit for the accusedappellant as the death occurred after four
days
of
the
occurrence,
was
not
premeditated.

51. We come to the definite
conclusion that the death was due to
septicemia. The judgments cited by the
learned counsel for the appellant would
permit us to uphold our finding which we
conclusively hold that the offence is not
under Section 302 of I.P.C. but is culpable
homicide.

52. The accused is in jail for more
than 10 years. The Apex Court in such
cases has converted the conviction under
Section 302 of I.P.C. to Section 304 Part I
of I.P.C. which will come to the aid of the
accused.

53. In view of the aforementioned
discussion, we are of the view that the
appeal has to be partly allowed, hence,
appeal is partly allowed.

54. The conviction of the appellant
under Section 302 of Indian Penal Code is
converted to conviction under Section 304
(Part-I) of Indian Penal Code and the
appellant is sentenced to undergo 10 years
of incarceration with remission but the fine
and default sentence are maintained.

55. The convict- appellant shall be
released on completion of said period, if
not required in any other case. The
judgement and order impugned in this
appeal shall stand modified accordingly.
----------
(2022) 10 ILRA 216
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 2164 of 2012
And
Criminal Appeal No. 1356 of 2012

Manish Kori ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Qazi Vakil Ahmad, Sri F. Rahman, Sri
Neeraj Pandey, Sri Raj Kumar Sharma.

Counsel for the Respondent:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Sections
302/34Challenge
to-Conviction-Murder-No
premeditation-incident occurred at the